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Lovelt Walker v. Asset Acceptance

July 10, 2012


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


RODRIGUEZ, Senior District Judge

This matter comes before the Court on Defendant Asset Acceptance, LLC's ("Asset") motion for summary judgment. Plaintiff Lovelt Walker ("Walker") filed this Complaint alleging that Defendant left her an abusive voicemail message in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692, et seq. The Court has considered the written submissions of the parties. For the reasons discussed below, the motion will be granted in part and denied in part.

I. Background

The undisputed facts are as follows. Plaintiff alleges that she received a voicemail from Defendant on July 22, 2010 at 1:42 p.m. in which Defendant's agent called her a "fat motherfucker." (Compl. ¶ 8.) Prior to July 22, 2010, Defendant had acquired a defaulted account from World Financial Network which was owed by Plaintiff (the "WFN account"). (Decl. of Kenneth Proctor ("Proctor Decl.") ¶ 4.) Defendant initially contacted Plaintiff regarding this debt in a letter on February 10, 2009 which contained disclosures consistent with the FDCPA. (Proctor Decl. ¶ 6.) Defendant assigned the WFN account to its account representative Kerwin Bonner ("Bonner").

On July 22, 2010, Bonner called Plaintiff and left a voicemail regarding the WFN account. Plaintiff alleges that when she checked her voicemail, she heard a message that included the statement "you fat mother[fucker]." (Compl. ¶ 8; Pl.'s Br. Ex "A" (audio CD).) Plaintiff states that the voicemail system identified the originating phone number as 434-878-9954. (Compl. ¶ 8; Pl.'s Br. Ex. "A.") Defendant contends that while Bonner did leave Plaintiff a voicemail, he did not use any profane or abusive language. Rather, Defendant asserts that Bonner's message (referred to as a "Foti message") contained merely the following:

This message is for Lovelt Walker. If you're not her, please hang up. If you are, please continue to listen, but not in the presence of others, because it contains personal information. This is Kerwin Bonner, debt collector with Asset Acceptance, please contact me at 1-800-525-8022, extension is 3682. Please return my call today, the reference number is 38967399. 38967399.*fn1 (Decl. of Thomas R. Dominczyk ("Dominczyk Decl.") Ex. "B" (audio CD).) Bonner called Plaintiff again the following day and spoke with her directly about the account. Plaintiff stated that Bonner neither said nor did anything inappropriate in that conversation or in other conversations she'd had with him, or in the Foti message as heard above. (Dep. of Lovelt Walker ("Walker Dep.") 206:12 - 209:20.)

On July 26, 2010, after hearing the profane message, Plaintiff called the number indicated on the voicemail and reached Defendant. Plaintiff spoke to a number of Defendant's representatives and supervisors, some of whom stated that, upon listening to Defendant's recording of the voicemail left by Bonner, no profanity was present. Ultimately Plaintiff spoke to someone named "Richard," who identified himself as the supervisor for all of the other individuals with whom Plaintiff had spoken and informed Plaintiff that it would not be possible for him to play Defendant's recording of the call over the phone. (Compl. ¶ 22.) Plaintiff alleges that Richard "became more and more confrontational" and "increasingly more difficult." (Id. at ¶¶ 23, 25.)

Plaintiff filed the Complaint in this matter on August 20, 2010, alleging claims under the FDCPA, 15 U.S.C. §§ 1692d, 1692d(2), 1692e, 1692e(10) and 1692f ("Count I"), as well as a claim for Intentional Infliction of Emotional Distress ("Count II"). Defendant moves for summary judgment on all claims. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367.

II. Discussion

A. Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary ...

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